Professional Documents
Culture Documents
IN THE
INDIANA COURT OF APPEALS
CAUSE NO. 18A-PL-01849
The trial court allowed the City of Boonville to exercise jurisdiction over a
coal mine project located entirely outside the City’s borders. The City’s exercise of
Appellants Alcoa Fuels, Inc. and Alcoa Warrick LLC (collectively “Alcoa”), including
action is preempted by State and federal law. State regulators charged with
overseeing coal mining in Indiana have already approved the project, which
complies with the governing State and federal coal mining regulations. Yet the
City’s ordinance would override those laws and replace them with the City’s own
attempt to halt the mine project. None of Alcoa’s operations are within the City
limits. But the City’s ordinance impinges on Alcoa’s ability to obtain the coal needed
for its energy-intensive operations in Warrick County. As the trial court found,
Alcoa has no legal remedy for the injuries the City’s ordinance would inflict on
Alcoa. Pursuant to Ind. Appellate Rule 56(A), Alcoa respectfully requests that the
trial court’s order denying in part Alcoa and Liberty Mine LLC’s motion for a
significant harm to Alcoa and address the matters of public interest raised by this
appeal.
BACKGROUND
The Ordinance
on mining not just within the City’s borders, but in areas surrounding it. 1 The
(Ordinance § 1.) This prohibition applies within the City as well as “areas within
three (3) miles outside its corporate boundaries.” (Id.) It bans mining in this
territory, including the area three miles outside the City. (Id.)
2
Section 2 of the Ordinance purports to impose a second “moratorium” on
mining or blasting within 1,000 feet of “any of the City’s utility infrastructure.”
(Ordinance § 2.) Again, the Ordinance states this prohibition extends to any area
watercourses” unless both the City’s mayor and its city council give prior written
permission. (Ordinance § 3.) The Ordinance does not list the circumstances that
would lead the City to give the required permission. (Id.) The Ordinance includes
mining in its definition of an “industrial” use of a watercourse. (Id.) The “uses” the
diverting water from a watercourse for mining, and discharging fluids or other
byproducts from a mine. (Id.) These activities are necessary for mining. (Complaint
Alcoa’s Operations
include an aluminum smelter, rolling mill, and ingot plant, all of which are owned
3
and operated by Alcoa Warrick LLC (the “Warrick Operations”). Alcoa also
maintains a power plant that provides power and other utility services to Alcoa’s
operations. (Order ¶¶ 5-6.) None of the Warrick Operations are within the City. (Id.)
intensive manufacturing operation that makes and processes aluminum. (Id.) Alcoa
maintain its operations in Warrick County. (Id.) Absent readily available energy,
the Warrick Operations (and the many jobs it provides) would be imperiled. (Id.)
critical element of production, and high energy costs harm the ability of any
Coal mining has been a feature of life in Warrick County for decades. (Order
¶ 4.) Liberty Mine LLC’s affiliated entities have mined coal in Warrick County for
at least the past 20 years, and its current mining work includes an operation known
as the Liberty Mine. The Liberty Mine employs over 100 people on a full-time basis,
and extracts coal owned by Alcoa for use in generating power for the Warrick
Alcoa owns the rights to coal deposits within Warrick County but outside of
the City, and has contracted with other property owners in Warrick County (but
outside the City) to remove coal from their property for a royalty. (Order ¶ 2.)
Alcoa and Liberty need to obtain coal from these deposits in order to satisfy
4
the coal needs of the Warrick Operations.
366”) from the Indiana Department of Natural Resources (“DNR”), allowing Liberty
to mine coal in Warrick County but outside the City. No part of the permitted area
is or has ever been in the City. Liberty continues mining coal today under that
permit, and does so pursuant to contracts with Alcoa Fuels and to provide fuel for
expand its mining to include an area referred to as the “Liberty Mine South Field,”
which lies to the south of the current Liberty operations. (Complaint ¶¶ 31-32.)
The Liberty Mine South Field is entirely outside the corporate limits of the
City, comes no closer than 2,500 feet to the City’s corporate limits, contains no
(Complaint ¶¶ 34-37.)
Liberty to extract coal in the Liberty Mine South Field pursuant to the contract
between Liberty and Alcoa. (Id.) The DNR approved Permit S-366-2 on January 4,
2018. This approval expanded Liberty’s permit area to include the Liberty Mine
South Field. (Complaint ¶ 33.) Under the conditions set out in Permit S-366-2,
Liberty may not engage in blasting or removal of overburden at any point within
the Liberty Mine South Field closer than 0.9 miles from the closest point along the
City’s corporate limits, and the vast majority of all blasting activity will occur
5
substantially farther than one mile from the City’s corporate limits. (Complaint ¶¶
38-39.) The Ordinance, by contrast, extends the parameter for blasting to three
2018. The permit remains in effect, and the administrative appeal is ongoing.
The Ordinance prevents the mining activity that the DNR authorized by
Permit S-366-2.
The Order
settlement discussions, Alcoa and Liberty Mine challenged the Ordinance and
sought a preliminary injunction. On July 9, 2018, the trial court entered the Order
Section 2(b) of the Ordinance lawfully allowed the City to prohibit the
The City could limit the use of watercourses for mining under Section 3
of the Ordinance.3
6
ARGUMENT
Under Appellate Rule 56(A), “the Supreme Court may, upon verified motion
of a party, accept jurisdiction over an appeal that would otherwise be within the
jurisdiction of the Court of Appeals upon a showing that the appeal involves a
substantial question of law of great public importance and that an emergency exists
requiring a speedy determination.” Id. The Order satisfies both prongs of Rule
56(A). The Order raises questions of law appropriate for resolution under Rule 56(A)
boundaries and does so in ways that contradict and impinge on regulation by both
State agencies and another local government. Second, an emergency exists that
activities, threatening the viability of the Warrick Operations despite the State’s
prior approval of the mining project. The Ordinance threatens the lifeblood of the
Warrick Operations. As already found by the trial court, the Order leaves Alcoa
without any recourse for more than $100 million in injuries that potential
enforcement of the Ordinance would inflict. (Order § 103.) The Court should grant
important questions of law and prevent significant harm to the Warrick Operations.
The Order implicated important issues of law when it granted the City the
power to undercut a mining project that: (1) is already approved by State regulators
charged with overseeing mining under controlling State and federal laws; and (2)
7
will occur wholly outside the City’s borders. The Order allowed the City to target
the mine by prohibiting Alcoa and Liberty Mine from making use of nearby
near the City’s utility infrastructure. This appeal therefore addresses three
substantial questions of law: (1) whether the City may regulate watercourses and
blasting despite existing federal and State regulation of both activities, including a
State-issued mining permit and required water permits; (2) whether the Order gave
authorized by the Home Rule Act; and (3) whether the City usurped the existing
Under the Home Rule Act, a local government may not “regulate conduct that
the Home Rule Act by purporting to prevent activities expressly authorized by State
agencies. Id.
federal permitting programs that control the use of watercourses for surface mining:
8
including a requirement to “treat[]drainage to reduce toxic
amounts.
watercourses.
The permit for the Liberty Mine South Field itself regulated the impact the
review of all available information, coal processing waste disposal will not have an
adverse impact upon the hydrologic balance at this site.” (Permit p. 18.)
These State and federal regulations preempt the City’s attempt to impose its
own restrictions on the use of watercourses outside the city because they conflict
with already controlling state and federal regulations. Ind. Code § 36-1-3-8(a)(7).
9
“‘An impermissible conflict with state law will be found if the Ordinance seeks to
Resources v. Newton County, 802 N.E.2d 430, 433 (Ind. 2004) (quoting Hobble v.
Bashman, 575 N.E.2d 693, 697 (Ind. Ct. App. 1991)). That is precisely what the
While the Court has previously determined that the DNR’s general oversight
of aquifers did not preempt a town’s regulation of withdrawals from aquifers, it has
never allowed a local government body to override the express permitting decisions
of a State agency. Compare Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d
598, 607 (Ind. 2011) with Newton County, 802 N.E.2d at 433. The Avon case did not
involve an activity expressly permitted by the State. In Avon, the DNR had the
authority to identify aquifers that could not be tapped by those hoping to use the
underground water. Avon, 957 N.E.2d at 608. But the DNR had not actually
exercised that power in regard to the aquifer at issue in Avon. If it had, the case
would have had a different result. Id. Nothing in Avon—or any of this Court’s other
issue permits. Avon, 957 N.E.2d at 607-08. The Home Rule Act itself expressly
forbids this type of local regulation of State and federal matters by divesting cities
The Order also upheld the City’s ability to regulate the “blasting” used in
surface mining. But that activity is also expressly allowed by the permit issued by
10
the DNR. The General Assembly gave the DNR the power to regulate surface
surface mine permittee. These conditions extend over all aspects of surface mining
and expressly include determining the conditions under which blasting may occur.
See Ind. Code § 14-34-10-2; Ind. Code § 14-34-11-1; Ind. Code § 14-34-12-1, et seq.
Permit S-366-2 expressly governs whether, when, where, and how Liberty
may engage in blasting. (Complaint ¶¶ 38-39.) It says that Liberty may engage in
blasting so long as it does not occur closer than 0.9 miles from the closest point
The Ordinance purports to take away the permission granted by the permit
by extending the area to three miles from the City’s border. (Ordinance § 2(b).) The
Home Rule Act prevents the City from “regulat[ing] conduct that is regulated by a
This City cannot purport to overrule the DNR’s permitting decision in favor of its
substantial conflict between State and local law countenanced by the Order.
impermissible attempt to ban mining outside the City’s borders. The trial court
enjoined those parts of the Ordinance that directly banned mining outside the City’s
boundaries. (Order p. 31.) It did so because the City cannot create zones where
11
mining may occur without following the required steps for promulgating a zoning
ordinance (a process the City ignored in enacting the Ordinance). (Order ¶¶ 32-33.)
This Court expressly held as much in City of Carmel v. Martin Marietta Materials,
Inc., 883 N.E.2d 781, 786-87 (Ind. 2008) (“When dictating what type of land use is
permitted and where, a unit must employ the zoning process and follow the 600
Series Procedures.”).4
The City seeks to circumvent this Court’s earlier holding in Carmel by using
This provision of the Ordinance is another thinly veiled mining ban. It has
the purpose and effect of impermissibly regulating mining outside the City’s
borders. Mining cannot occur without access to any watercourse. The Ordinance
3.)
12
municipal powers under the Home Rule Act and the Carmel case. Because the City
this precise issue by Warrick County. In 2006, Warrick County passed a series of
ordinances addressing watercourses within the county. See Warrick County Code §§
53.09, 53.10, & 53.05. These legitimate ordinances regulate the same matters as the
Ordinance. They limit discharges into a watercourse. See Warrick County Code §
53.09. They prevent landowners from allowing any material into a watercourse if “it
would pollute, contaminate, or significantly retard the flow of water through the
watercourse.” Warrick County Code § 53.10. And the Warrick County ordinances
provide that “[n]o person shall discharge or cause to be discharged into the storm
apply to any discharge into a watercourse. They are not limited to Warrick County’s
stormwater system.
13
Warrick County took exclusive jurisdiction over the watercourses within its
territory (and outside the City). The Home Rule Act does not allow two units to
exercise the same power over the same subject at the same time. Ind. Code § 36-1-3-
5. “Under Indiana law, there cannot be two municipal corporations for the same
purpose with coextensive powers of government extending over the same territory.”
Ryan Homes, Inc. v. Town of Cumberland, 742 F.2d 1115 (7th Cir. 1984). One must
This Court has resolved this type of conflict by giving exclusive jurisdiction to
the entity that first exercised jurisdiction over a territory. See City of N. Vernon v.
Jennings Northwest Reg’l Utils., 829 N.E.2d 1, 2 (Ind. 2005); see also Town of
Merrillville v. Merrillville Conservancy Dist., 649 N.E.2d 645 (Ind. Ct. App. 1995).
jurisdiction over the watercourse, Warrick County alone had the right to make that
gained the exclusive power to decide what restrictions are appropriate (and which
City cannot override the powers of another unit of government. Ind. Code § 36-1-3-5.
14
The City lost any power to regulate watercourses outside its own borders once
Warrick County gained jurisdiction. The Court should therefore grant transfer to
avoid the conflict between the ordinances of two different bodies of local
government.
Alcoa requires the Court’s expedited review of the case because of the
irreparable injury Alcoa faces if the City is allowed to enforce its Ordinance. Alcoa
requires a ready source of coal from the Liberty Mine to carry out its Warrick
Operations. (Order ¶¶ 4-6.) As the trial court determined, the Warrick Operations
are energy intensive. (Id.) The Warrick Operations need coal to supply the energy
needed to make aluminum. (Id.) Without a supply of coal readily available and
Operations. (Id.) The Warrick Operations contain several heavy industrial facilities,
including aluminum smelter, rolling mill, and ingot plant. These facilities compete
in a globally competitive market for aluminum. (Id.) The cost of energy is a primary
Alcoa’s facilities would be imperiled if the City severs their key supply of coal.
(Order ¶¶ 5-6.) This threatens the viability of the Warrick Operations. As the trial
court found, the potential injuries to the Warrick Operations exceed $100 million.
(Order ¶ 103.)
Alcoa has no legal remedy for the harms the Ordinance imposes on it because
of the immunities that shield the City from civil liability. Again, the trial court held
15
as much: “Without a preliminary injunction, the Plaintiffs face months without
being able to put their property to a use already approved by the DNR. Because of
government immunities and other barriers to suit, the Plaintiffs cannot simply seek
damages for Boonville’s decision to handcuff Alcoa from putting its land to this
permitted use and Liberty from exercising its contractual rights.” (Order ¶ 102.)
The only protection Alcoa has is a preliminary injunction. The trial court
granted that relief only in part. It failed to entirely enjoin the enforcement of the
the appeal is needed to prevent the irreparable harm the trial court identified but
CONCLUSION
Because the Order raises questions of law that require prompt and final
resolution by the appellate courts, as well as and the immediate threat of significant
irreparable injury, Alcoa respectfully requests that the Court accept jurisdiction
Respectfully submitted,
s/Mark J. Crandley
E. Sean Griggs (Atty. No. 17716-49)
Mark J. Crandley (Atty. No. 22321-53)
BARNES & THORNBURG LLP
11 South Meridian Street
Indianapolis, Indiana 46204
Telephone: (317) 236-1313
Facsimile: (317) 231-7433
Email: sgriggs@btlaw.com
Email: mcrandley@btlaw.com
16
John Henderson (Atty. No. 31148-82)
STOLL KEENON OGDEN PLLC
One Main Street, Suite 201
Old National Bank Building
Evansville, Indiana 47708
Telephone: (812) 759-3802
Facsimile: (812) 759-3898
Email: John.Henderson@skofirm.com
17
VERIFICATION
Pursuant to Indiana Appellate Rule 340:), I verify LhaI. Lhe Facts set, forth in
@JJL
Adam Ticman
18
WORD COUNT CERTIFICATE
I verify that this motion contains no more than 4,200 words as calculated by
the word processing program used to create it, which was Microsoft Word XP.
s/Mark J. Crandley
19
CERTIFICATE OF FILING AND SERVICE
I hereby certify that on this 9th day of August, 2018, the foregoing was filed
with the Clerk of the Court of Appeals.
I also certify that on this 9th day of August, 2018, the foregoing was served
upon the following in accordance with Rule 24 by United States mail, postage
prepaid:
Counsel of Record
s/ Mark J. Crandley
DMS 13066701v1
20
ORBINANCE NUMBER 2017- Q3
WHEREAS, the City has ?men advised of numerous hazards and concea'ns associated
with mining reiated activities near the City and ifs utjiity 'mfrastructure, including but not limitaéi
t0 property damage, dust, noise, impacts 0n watercourses, existing. older mine shafts Eocatefi
beneath homes and property, anci the éanger of hazardous materials stored in such existing
mines; and
WHEREAS, the City furiher seeks £0 protect the igng—Lerm future and growth of the
City, as well as ensure the viability of fume aconomic development ofthe area; and
WHEREAS, in addiziga to its genera] police power and home rule authoriéy, azad as a
nen—exhaustive list, the City 31213 the express authority to regulate conduct er file use 0f property
that might endanger the public health, safety, 0r welfare, mgulaie the exeavation, mining,
drilling, and other movement 0r removal of earth 13510“: greumi level, regulam the taking of
wazer 0r introduction 0f any substance 11110 a watsrcourse, regulate the introduction of any
subsiance or odor into the air, 0r any generatiez; of sound, and/or adop£ regulations to protect the
City’s atility infrastructure; and
'WHEREAS, the City may and c2663 proviée utility service and exercise regulatory
authority beyond its Gerporate boundaries; and
WHEREAS, the City desires to ensure an adequate oppm’tunity for propsxty owner and
community input, arid for {he City t0 study and develop such additional reguiatiens as my be
appropriate to ensure ihe adequate protection of the interests 0f the City and fihe residences,
landowners, and businesses of the greater Boonvills cormmmity, from activities that may
negativcly impact the City, its infrastructure and cicvekapment, property mines, and quality of
life; and
WHEREAS, the City wishes £0 restrict astivié‘ies, regardless of whether related direcfiy
or indirectly to mining operations, that pose a threat ta the public health, safety, and welfare of
the City, its regédems, its in fzastructurq and the surrounding community,
Exhibit A
Section l. MORATORIUM ON MINING
(A) Pending further Ordinance 0f the Council, no person, firm or cmporation shall
minc 0r remove coal, gas, oil or ether minerals {ram Within {ha earporate Iimiis 0f the City 0r in
areas within éhree (3) miies outside its corporate boundaries
by either stripping, open pit, auger,
undergmunds mom and pillar, Eongwail, eut—ancl—filL block shaft, sublevei, barehole, vertical
cram, slope 0r deep mine method 0f removing coal and minerals, fracking, or of drilling for gas,
oil 0r other energy materials by any commercially known means whatsoever (coflectively
“Mining”).
(B) In addition t0 the general penaities provided by Ordinance, the City is further
authorized to take whatever injunctive relief is necessary to enjoin and restrain the
afbmmenfionfid Mining.
(C) There is hereby excepted from the prohibitions in this Section: (a) Mining that
may b3 necessary 30 as {o prepare ground far the construction 0f buildings OI fiWBHiags thereon,
if such bufidings 0r dwellings could not be constructed without the re'meval 0f the subjzicem Gr
lateral shafts, rhea sueh Mining is permissible; and (b) Mining pursmm to and to the exteni 0f a
valid, complete, 'finai, and nomappeaiabie permit, issued by the Etaéfiana Bepartment 0f Natural
Resources or U3, Office of Surface Mining Reclamation and Enforcement, and existing and
continuously in use as 0f Nevmbar 29, 20] 7,
(A) Pending further Ordinance of the Council, no person, firm, or corporaticm shail
conduct or engage in Mining within one-thousand (1,000) feet 0f any of the City’s utility
infrastructure, including but not limited t0 utiliiy wells, tram:
facilities, or distributéen andfor
(B) Pending further Ordinance 0f the Caumil, no person, firm? or corporation shall,
within oneuthousand (1,800) faet of any of the City’s Utility Infrasgxuctm'e or any resicfefitiai 0r
commercial structure, conduct or engage in blasting 0r {33,6 use 0f fixpiosives in the excavation of
iand 0r removal 0f materials from m: below the surface of the earth, without the written
permission 0f the Mayor and approval 0f the Council. The provisions of this suiasection shall
apply within the City and Wizijin three (3) miles 0f the City’s boundaries.
(C) In additien to the general penalties provided by Ordinance, fi’m City is further
aathorized to take whatever injunctive relief is necessary ti} ezijein and restrain the
aforementioned Mizaéng, blasting, 0r use 0f explosives within the City 01' Withizz three (3} miles 0f
the Ciiy’s baundaries.
Exhibit A
Section 7. Severabiiity. The pmvisions, terms, prohibitions, territory, and extent 0f this
Ordinance arc scwzrable. In the even: any one or more of the provisiorzs contained in this
Ordinance should be heid invalid, iiiegai, or unenformabla in any respect, the validity, 1egality,
and enforceability of ihe remaining provisions contaified herein shall 39%: in any way be affected
0r impaired and shall remain in fizii force and cffeci, and in Eieu Ofeach provisicm that is found t0
be iilegai, invalid, or unexfiomeable, a provision wiii be added as a part of this Ordinance that is
as similar {a the illegal, invalid, 0r unenforceable provision as may be possible agd be legal,
valid, and enforceable.
the terms and conditions of this Ordinance are hereby repeaicd ané replaced to the extent of the-
conflict.
Section 9. Effective Date‘ This Ordinance shall be in fizlfi fore: and effect from and
passage as provided by applicable law, and shall expire on December
after its 1, 20'i8, unless
ATTEST.
TAMMY ORUFF
.
‘‘‘‘‘‘
Q- {lhcfiz mgr‘a-H p)
Presiffing Offi/Jé f Councii
Signed and approved by me tha Mayor 0f the Ci’iy 0f Boonvilic on {his ti? day 0f
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335482
STATE OF INDIANA ) IN THE WARRICK SUPERIOR COURT
) SS:
COUNTY OF WARRICK ) CAUSE NO. 87D02-1801-PL-000116
Plaintiffs,
Defendant.
This matter comes before the Court on the Plaintiffs’ motion for preliminary
injunction. The Court held a hearing and heard argument on April 25, 2018. The
Court, having taken this mfitter under advisement, and being duly advised, now
enters its Findings of Fact, Conclusions 0f Law and Injunction precluding Defendant
the City of Boonvflle from enfofcing Sections 1 and 2(A) of its Ordinance 2017-23
FINDINGS 0F FACT
and Liberty Mine, LLC (“Liberty”) seek a preliminary injunction to prevent the City
of Boonvflle from enforcing Ordinance 2017—23 outside the territorial borders of the
City. Neither Alcoa nor Liberty request relief related to the enforcement 0f the
Exhibit B
2. Alcoa owns the rights to coal deposits within Warrick County but outside
of Boonville, and has also contracted With other property owners in Warrick County
(but outside Boonvflle) t0 remove coal from their property for a royalty. (Complaint
‘IHI 12-15.)
3. Alcoa Fuels, Inc. supplies fuel t0 the Warrick Power Plant, which in turn
provides power and other utility service t0 Alcoa’s operations in Warrick County (the
“Warrick Operations”) including Alcoa’s aluminum smelter, rolling mill, and ingot
16-
plant, all of Which are owned and operated by Alcoa Warrick LLC. (Complaint 1H]
18.)
least the past 20 years, and its current mining work includes an operation known as
the Liberty Mine. The Liberty Mine employs over 100 people on a full-time basis,
and
extracts coal owned by Alcoa for use in generating power for the Warrick Operations.
(Complaint 1W 19-21.)
impact the Viability 0f any particular smelter to operate against global competitors.
(Complaint 1W 22-23.)
(“DNR”),
(“Permit 8—366”) from the Indiana Dep artment of Natural Resources
Boonville. Liberty
allowing Liberty to mine coal in Warrick County but outside
continues mining coal today under that permit, and does so pursuant
to contracts
30.)
expand its mining to include an area referred t0 as the “Liberty Mine South Field,”
which lies t0 the south of the current Liberty operations. (Complaint 1H] 31-32.)
10. The DNR approved Permit S-366—2 on January 4, 2018, thus expanding
Liberty’s permit area to include the Liberty Mine South Field. (Complaint TI 38.)
12. The Liberty Mine South Field is entirely outside the corporate limits 0f
(Complaint 1W 34-37.)
13. With the exception of a small area in its northwest corner, the Liberty
entirely within the Extraterritorial Ordinance Area.
Mine South Field falls
(Complaint 11 33).
(Complaint fl 71.)
areas under the Warrick County Comprehensive Zoning Ordinance.
15. This includes the Liberty Mine South Field, which is under Warrick
16. To the extent any matter set forth in the Court’s Conclusions 0f Law
CONCLUSIONS OF LAW
injunction.
Sadler v. State ex rel. Sanders, 811 N.E.2d 936, 945-46 (Ind. Ct. App. 2004).
mean the Plaintiffs must prove their case. See Pinnacle Healthcare, LLC v. Sheets, 17
N.E.3d 947, 953 (Ind. Ct. App. 2014). An injunction hearing is not a trial. See id. The
Plaintiffs must only show that they have a “reasonable likelihood 0f success at trial
3. The Ordinance that Alcoa challenges recites public health, safety, and
welfare concerns, Ordinance, p. 1, and then sets forth three prohibiting sections,
and blasting activity Within 1,000 feet of any of the City’s utility infrastructure or any
residential 01' commercial structure; and (3) a moratorium on new industrial uses 0f
4. Each of these protections is applicable Within the City and Within three
should be held invalid, illegal, 01' unenforceable in any respect, the validity, legality,
and enforceability of the remaining provisions contained herein shall not in any way
A statute bad in part is not necessarily void in its entirety. Provisions within
the legislative power may stand if separable from the bad. But a provision,
inherently unobjectionable, cannot be deemed sep arable unless it appears both
that, standing alone, legal effect can be given t0 it and that
the legislature
intended the provision t0 stand, in case others included in the act and held bad
should fall.
Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1278-79 (Ind.
2014). “[I]f one section of a city ordinance 01' legislative act can be separated from the
other sections and upheld as valid, it is the duty 0f the court t0 do so.” Hobble by &
Through Hobble v. Basham, 575 N.E.2d 693, 699 (citing Smith v. George, 108 N.E.
the Legislature would have passed the statute had it been presented Without the
Kuebel, 172
invalid features.” Paul Stieler Enters., 2 N.E.3d at 1279 (quoting State
v.
that statute” invalid. Id. In fact, “[t]he inclusion of a severability clause creates a
presumption that the remainder of the Act may continue in effect. The absence 0f a
severability clause creates the opposite presumption: the Le gislature intends the Act
Bd. v. Benton Cmty. Sch. Corp, 365 N.E.2d 752, 762 (1977)).
8. Here, the intent of the Boonville City Council is plain on the face of the
stand—alone
Ordinance. Its three prohibiting clauses are set forth in separate,
sections. See Ordinance §§ 1—3. With the severability clause in Section 7, the Boonvflle
City Council made clear its intent for each of these regulations — and each portion 0f
each regulation — to stand 0n its own, independent of whether any other provision
stood or failed. Because 0f the presumption that applies when a severability clause is
present, the plaintiffs had to demonstrate some basis upon Which the Court could
9. In light of this severability provision, the Court Will address each section
ORDINANCE SECTION 1
12. Supreme Court and subsequent Court 0f Appeals cases have made clear
that if the exercise 0f power under the Public Health Statute amounts t0
an attempt
Marietta Materials, Ina, 883 N.E.2d 781, 786 (Ind. 2008); see also Rogers Group,
Inc.
13. The Indiana Supreme Court has required municip alities t0 comply with
zoning laws if the local ordinances have the effect of restricting the areas where
mining may occur. Martin Marietta, 883 N.E.2d at 787. (dictate land use permitted
and Where)
14. Under Martin Marietta, when a city attempts to zone mining (regardless
0f Whether it admits it is engaged in zoning), it must comply with Indiana zoning laws
ordinance was noit a zoning ordinance only because it set regulatory conditions in
Which mining could occur and did not dictate the location Where mining was allowed
What
under the Public Health Statute) would be a void attempt t0 zone if it “dictate[s]
important to focus upon the practical effect of the ordinance.” Sagamore Park v. City
Inc. v. Board of Comm’rs, 977 F.2d 287, 292 (SD. Ind. 1992)).
define
18. In looking at the practical effect of an ordinance, Indiana cases
19. The test applies even when the ordinance does not entirely ban a
See Board of Comm’rs v. Town & Country Utilities, Ina, 791 N.E.2d 249, 255 (Ind.
use as a
34 (SD. Ind. 1991); Sagamore, 885 F.Supp. at 1150 (prohibition on
satellite
gaming facility struck down; “Likewise, the Moratorium is an act of zoning.
C—4 District. The essence of the Moratorium seems to be preserving the status quo in
an act 0f zoning”).
the face 0f a previously untested land use. This is clearly
ordinance
20. In the Martin Marietta case, the Court determined that the
21. The Carmel ordinance did not, in the Court’s View, prevent owners from
Carmel. Martin
how mining could be conducted regardless 0f where it occurred within
22. The Supreme Court recognized that an ordinance that did create
rules
restrictions on the location 0f mining would be a zoning ordinance subject t0 the
certain zones.
Boonvflle zones “mining” as a use appropriate for only
The Court 0f Appeals held that the prohibition 0n quarries within two
27.
e
miles 0f residential areas was a zoning ordinance, as it “would most definitely confin
is ‘quintessential
areas’). This, as our Supreme Court said in Martin Marietta,
zoning’” because it dictates what type 0f land use 1's permitted and Where. Id. at 851
10
Boonville’s Ordinance has the same effect. It confines a certain class of
28.
zoning.” Id.
utility infrastructure). This amounts to an attempt at “quintessential
ds that the
29. The Rogers case distinguiéhed Martin Marietta 0n the groun
in the city.” Id. at 851. Instead, the Carmel ordinance “merely regulated how mining
“Because the Carmel ordinance did not ban or permit mining citywi
de
30.
Id. (citing
noncompliance With the 600 Series Procedures was
irrelevant.”
city’s
11
First, Boonvflle did not engage in the appro
priate process for enacting
34.
The Home Rule Act states that When there is a specific manner
36-7-4—600, et seq.
1-3—6.
t0 interested
provide notice to the public by publication and
place of a
geographic area affected, and the date, time, and
1e gislative body.
12
a valid zoning ordinance.
18
2.1060, 2.1096, & 2.1217.
outside Boonville’s
has never enacted an ordinance that “designates” territory
borders as “the geographic area over which [its] plan commission shall exercise
by Boonvflle. (Id.)
g ordinances that
44. Fourth, the General Assembly expressly forbids zonin
“prevent, outside 0f urban areas, the complete use and alienation of any mineral
45. An “urban area” is defined as “all lands and lots within the corporate
Where there are at least eight (8) residences within any quarter mile square area, and
lots that have been or are planned for residential areas contiguous to
other lands 01‘
46. The Liberty Mine South Field is not located in an urban area.
Complaint 1[
79.
under Indiana’s zoning code. Boonville asserts it enacted the Ordinance under the
14
Indiana’s zoning law, including
Ordinance is an attempt at zoning that is governed by
ORDINANCE SECTION 2
or corporation
Pending further Ordinance 0f the Council, no person, firm,
housa nd (1,000) feet 0f any of
shall conduct or engage in Mining within one—t
d to utility wells,
the City’s utility infrastructure, including but not limite
ies (collectively,
treatment facilities, 0r distribution and/or collection facilit
feet of any
“Utility Infrastructure”), or within one—thousand (1,000)
residential or commercial structure. The provis
ions 0f this subjection shall
of the City’s boundaries.
apply within the City and Within three (3) miles
or corpo ration
Pending further Ordinance of the Council, no person, firm,
of the city’s Utilit y
shall, within one—thousand (1,000) feet of any
ure, conduct or engage
Infrastructure or any residential or commercial struct
or removal of
in blasting or the use of explosives in the excavation of land
ut the written
materials from or below the surface of the earth, Witho
permission of the Mayor and approval of the Council.
The provisions 0f this
three (3) miles of the City’s
subsection shall apply within the City and Within
boundaries.
in
50. Section 2(A) is a lesser-included regulation 0f the conduct regulated
Section 1 0f the Ordinance and is void for the same reasons that Section 1 is void.
Boonville has the authority to exercise its powers in the manner set forth in that
is so authorized.
n relative t0 the
52. In addition to Boonville’s extraterritorial authorizatio
15
Public Safety Statute, Indiana Code § 36-9-2—18 authorizes a local unit to establish,
Rule Act, Boonville has “all powers granted it by statute” ~ such as exercising utility
— and “all other powers necessary 01' desirable in the conduct of its
jurisdiction
That Within
even though not granted by statute.” IND. CODE § 36-1-3-4(c). is,
affairs,
.” IND.
omission of a power from such a list does not imply that units lack that power
ed in Boonville’s
valid, Town ofAvon, 957 N.E.2d at 607, and any doubt must be resolv
the Supreme Court in the
favor. Martin Marietta, 883 N.E.2d at 784. As explained by
16
applies into
permitted and where” and “divides the jurisdiction t0 which
it
use is
Ordinance does not do that; instead, it simply creates a 1,000-f00t buffer between any
structure. Notably, Carmel’s ordinance, Which was not a zoning ordinance, included
1,000-f00t buffer “from those Whom the ordinances were designed to protect.” 950
Retail and the buffer here. Section 2(B) is a valid exercise 0f Boonville’s powers,
it is not a
express and implied, t9 regulate, protect, and maintain utilit
y services;
zoning ordinance.
“An impermissible conflict With state law W111 be found if the Ordinance seeks to
to occupy
Newton County, 802 N.E.2d 430, 433. However, if the state has not chosen
purpose.” Id.; see also Hobble, 575 N.E.2d at 697, and Yater
v. Hancock County
Planning Comm’n, 614 N.E.2d 568, 575 (Ind. Ct. App. 1993).
17
subject matter of Section 2(B). Nothing in the
Ordinance’s provisions that limit
at 433; Hobble, 575 N.E.2d at 697. There is n0 basis upon Which Section 2(B) of the
56. The fact that DNR requires a permit for coal mining does not, ipso facto,
§ 36-1—3-8(a)(7).
It is commonplace
render Section 2(B) invalid under Indiana Code
restrict possession of Wild or exotic animals despite parallel state licensing program
18
no room for additional local regulation. Given the
so comprehensive that there is
DNR’S regulations suggests that local governments are powerless to place any
is not preempted.
restrictions 0n blasting activities. Section 2(B)
ORDINANCE SECTION 3
or corporation
Pending further Ordinance of the Council, no person, firm
corporate
shall,Within the City or Within three (3) miles outside 0f its
divert water from a
boundaries, Withdraw water from a watercourse,
(including but not
watercourse, or discharge fluids 01' other byproducts
limited to water previously withdrawn 0r diverted
from the watercourse and
part 0f 0r in conjunction
recycled 01‘ reintroduced into the watercourse), as
course Use”),
With industrial operations (collectively “Industrial Water
Whether 01' not such industrial operations are Mining 0r
Mining related
val 0f the
activities,Without the written permission of the Mayor and appro
Council.
60. Again, the first question is Whether Boonvifle has the authority t0
is so authorized.
its boundaries. The Court concludes that Boonville
61. Under the Indiana Code, governmental units “may establish, vacate,
19
CODE 36-9-2-8. Within that authority,
maintain, and control watercourses.”1 IND. §
units can do the following: (1) “change the channel of, dam, dredge, remove an
obstruction in, straighten, and Widen a watercourse,” IND. CODE § 36-9-2-9; (2)
“regulate the taking of water, 0r causing 01' permitting water to escape, from a
at 605-06.
as set forth in Section S(A) of the Ordinance. See id.
overlap, regulating storm water discharge and regulating the industrial use of
no longer includes an
1
A “watercourse” includes “lakes, rivers, streams, and any other body ofwater,” but
2O
first~in-time rules d0 not apply When dealing With
2; IND. CODE. § 8-1.5—5, and
County Code).
state law.” Warrick County Code § 53.01. Warrick County regulates the
“to
introduction 0f pollutants into the muni
cipal separate storm sewer system
2.1
through the watercourse. Id. at § 53.10. Finally, the code confirms that it does not
federal, state or local law and it is Within the discretion of the authorized
s tension
65. Nothing in Section 3(A) of the Ordinance conflicts or cause
related t0 Mining 01’ Mining related activities,” if within the City’s boundaries 0r
drainage system requirements 0r its NPDES permitting process, and by its plain
rt to exert exclusive occupation
terms the Warrick County ordinance does not purpo
0f the field.
this, the
66. When two units exercise their authority nonexclusively like
and the
question is Whether the objects and purposes of Warrick County Code
Inc. v. Town of Cumberland, 742 F.2d 1115, 1118 (7th Cir. 1984) (in determining
22
complies with the governing State and federal coal mining regulations. Yet the
City’s ordinance would override those laws and replace them with the City’s own
attempt to halt the mine project. None of Alcoa’s operations are within the City
limits. But the City’s ordinance impinges on Alcoa’s ability to obtain the coal needed
for its energy-intensive operations in Warrick County. As the trial court found,
Alcoa has no legal remedy for the injuries the City’s ordinance would inflict on
Alcoa. Pursuant to Ind. Appellate Rule 56(A), Alcoa respectfully requests that the
trial court’s order denying in part Alcoa and Liberty Mine LLC’s motion for a
significant harm to Alcoa and address the matters of public interest raised by this
appeal.
BACKGROUND
The Ordinance
on mining not just within the City’s borders, but in areas surrounding it. 1 The
(Ordinance § 1.) This prohibition applies within the City as well as “areas within
three (3) miles outside its corporate boundaries.” (Id.) It bans mining in this
territory, including the area three miles outside the City. (Id.)
2
and operated by Alcoa Warrick LLC (the “Warrick Operations”). Alcoa also
maintains a power plant that provides power and other utility services to Alcoa’s
operations. (Order ¶¶ 5-6.) None of the Warrick Operations are within the City. (Id.)
intensive manufacturing operation that makes and processes aluminum. (Id.) Alcoa
maintain its operations in Warrick County. (Id.) Absent readily available energy,
the Warrick Operations (and the many jobs it provides) would be imperiled. (Id.)
critical element of production, and high energy costs harm the ability of any
Coal mining has been a feature of life in Warrick County for decades. (Order
¶ 4.) Liberty Mine LLC’s affiliated entities have mined coal in Warrick County for
at least the past 20 years, and its current mining work includes an operation known
as the Liberty Mine. The Liberty Mine employs over 100 people on a full-time basis,
and extracts coal owned by Alcoa for use in generating power for the Warrick
Alcoa owns the rights to coal deposits within Warrick County but outside of
the City, and has contracted with other property owners in Warrick County (but
outside the City) to remove coal from their property for a royalty. (Order ¶ 2.)
Alcoa and Liberty need to obtain coal from these deposits in order to satisfy
4
substantially farther than one mile from the City’s corporate limits. (Complaint ¶¶
38-39.) The Ordinance, by contrast, extends the parameter for blasting to three
2018. The permit remains in effect, and the administrative appeal is ongoing.
The Ordinance prevents the mining activity that the DNR authorized by
Permit S-366-2.
The Order
settlement discussions, Alcoa and Liberty Mine challenged the Ordinance and
sought a preliminary injunction. On July 9, 2018, the trial court entered the Order
Section 2(b) of the Ordinance lawfully allowed the City to prohibit the
The City could limit the use of watercourses for mining under Section 3
of the Ordinance.3
6
will occur wholly outside the City’s borders. The Order allowed the City to target
the mine by prohibiting Alcoa and Liberty Mine from making use of nearby
near the City’s utility infrastructure. This appeal therefore addresses three
substantial questions of law: (1) whether the City may regulate watercourses and
blasting despite existing federal and State regulation of both activities, including a
State-issued mining permit and required water permits; (2) whether the Order gave
authorized by the Home Rule Act; and (3) whether the City usurped the existing
Under the Home Rule Act, a local government may not “regulate conduct that
the Home Rule Act by purporting to prevent activities expressly authorized by State
agencies. Id.
federal permitting programs that control the use of watercourses for surface mining:
8
“‘An impermissible conflict with state law will be found if the Ordinance seeks to
Resources v. Newton County, 802 N.E.2d 430, 433 (Ind. 2004) (quoting Hobble v.
Bashman, 575 N.E.2d 693, 697 (Ind. Ct. App. 1991)). That is precisely what the
While the Court has previously determined that the DNR’s general oversight
of aquifers did not preempt a town’s regulation of withdrawals from aquifers, it has
never allowed a local government body to override the express permitting decisions
of a State agency. Compare Town of Avon v. W. Cent. Conservancy Dist., 957 N.E.2d
598, 607 (Ind. 2011) with Newton County, 802 N.E.2d at 433. The Avon case did not
involve an activity expressly permitted by the State. In Avon, the DNR had the
authority to identify aquifers that could not be tapped by those hoping to use the
underground water. Avon, 957 N.E.2d at 608. But the DNR had not actually
exercised that power in regard to the aquifer at issue in Avon. If it had, the case
would have had a different result. Id. Nothing in Avon—or any of this Court’s other
issue permits. Avon, 957 N.E.2d at 607-08. The Home Rule Act itself expressly
forbids this type of local regulation of State and federal matters by divesting cities
The Order also upheld the City’s ability to regulate the “blasting” used in
surface mining. But that activity is also expressly allowed by the permit issued by
10
mining may occur without following the required steps for promulgating a zoning
ordinance (a process the City ignored in enacting the Ordinance). (Order ¶¶ 32-33.)
This Court expressly held as much in City of Carmel v. Martin Marietta Materials,
Inc., 883 N.E.2d 781, 786-87 (Ind. 2008) (“When dictating what type of land use is
permitted and where, a unit must employ the zoning process and follow the 600
Series Procedures.”).4
The City seeks to circumvent this Court’s earlier holding in Carmel by using
This provision of the Ordinance is another thinly veiled mining ban. It has
the purpose and effect of impermissibly regulating mining outside the City’s
borders. Mining cannot occur without access to any watercourse. The Ordinance
3.)
12
Warrick County took exclusive jurisdiction over the watercourses within its
territory (and outside the City). The Home Rule Act does not allow two units to
exercise the same power over the same subject at the same time. Ind. Code § 36-1-3-
5. “Under Indiana law, there cannot be two municipal corporations for the same
purpose with coextensive powers of government extending over the same territory.”
Ryan Homes, Inc. v. Town of Cumberland, 742 F.2d 1115 (7th Cir. 1984). One must
This Court has resolved this type of conflict by giving exclusive jurisdiction to
the entity that first exercised jurisdiction over a territory. See City of N. Vernon v.
Jennings Northwest Reg’l Utils., 829 N.E.2d 1, 2 (Ind. 2005); see also Town of
Merrillville v. Merrillville Conservancy Dist., 649 N.E.2d 645 (Ind. Ct. App. 1995).
jurisdiction over the watercourse, Warrick County alone had the right to make that
gained the exclusive power to decide what restrictions are appropriate (and which
City cannot override the powers of another unit of government. Ind. Code § 36-1-3-5.
14
as much: “Without a preliminary injunction, the Plaintiffs face months without
being able to put their property to a use already approved by the DNR. Because of
government immunities and other barriers to suit, the Plaintiffs cannot simply seek
damages for Boonville’s decision to handcuff Alcoa from putting its land to this
permitted use and Liberty from exercising its contractual rights.” (Order ¶ 102.)
The only protection Alcoa has is a preliminary injunction. The trial court
granted that relief only in part. It failed to entirely enjoin the enforcement of the
the appeal is needed to prevent the irreparable harm the trial court identified but
CONCLUSION
Because the Order raises questions of law that require prompt and final
resolution by the appellate courts, as well as and the immediate threat of significant
irreparable injury, Alcoa respectfully requests that the Court accept jurisdiction
Respectfully submitted,
s/Mark J. Crandley
E. Sean Griggs (Atty. No. 17716-49)
Mark J. Crandley (Atty. No. 22321-53)
BARNES & THORNBURG LLP
11 South Meridian Street
Indianapolis, Indiana 46204
Telephone: (317) 236-1313
Facsimile: (317) 231-7433
Email: sgriggs@btlaw.com
Email: mcrandley@btlaw.com
16
VERIFICATION
Pursuant to Indiana Appellate Rule 340:), I verify LhaI. Lhe Facts set, forth in
@JJL
Adam Ticman
18
Distribution to all counsel of record
DMS 12287227v2
32